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Montana Administrative Register Notice 17-324 No. 7   04/12/2012    
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BEFORE THE BOARD OF ENVIRONMENTAL REVIEW

OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 17.24.301, 17.24.302, 17.24.303, 17.24.304, 17.24.308, 17.24.313, 17.24.314, 17.24.401, 17.24.403, 17.24.416, 17.24.418, 17.24.425, 17.24.501, 17.24.623, 17.24.639, 17.24.642, 17.24.645, 17.24.646, 17.24.702, 17.24.711, 17.24.718, 17.24.723, 17.24.725, 17.24.726, 17.24.901, 17.24.924, 17.24.926, 17.24.927, 17.24.1001, 17.24.1002, 17.24.1003, 17.24.1005, 17.24.1016, 17.24.1018, 17.24.1111, 17.24.1112, 17.24.1113, 17.24.1114, 17.24.1116, 17.24.1201 pertaining to definitions, format, data collection, and supplemental information, baseline information, operations plan, reclamation plan, plan for protection of the hydrologic balance, filing of application and notice, informal conference, permit renewal, transfer of permits, administrative review, general backfilling and grading requirements, blasting schedule, sedimentation ponds and other treatment facilities, permanent impoundments and flood control impoundments, ground water monitoring, surface water monitoring, redistribution and stockpiling of soil, establishment of vegetation, soil amendments, management techniques, and land use practices, monitoring, period of responsibility, vegetation measurements, general application and review requirements, disposal of underground development waste, permit requirement, renewal and transfer of permits, information and monthly reports, drill holes, bond requirements for drilling operations, notice of intent to prospect, bonding, frequency and methods of inspections; the adoption of New Rules I through V pertaining to the department's obligations regarding the applicant/ violator system, department eligibility review, questions about and challenges to ownership or control findings, information requirements for permittees, and permit requirement - short form; and the repeal of 17.24.763 pertaining to coal conservation

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NOTICE OF AMENDMENT, ADOPTION, AND REPEAL

 

(STRIP AND UNDERGROUND MINE RECLAMATION ACT)

 

TO:  All Concerned Persons

 

1.  On December 22, 2011, the Board of Environmental Review published MAR Notice No. 17-324 regarding a notice of public hearing on the proposed amendment, adoption, and repeal of the above-stated rules at page 2726, 2011 Montana Administrative Register, issue number 24.

 

            2.  The board has amended ARM 17.24.301, 17.24.302, 17.24.303, 17.24.304, 17.24.308, 17.24.313, 17.24.314, 17.24.401, 17.24.403, 17.24.416, 17.24.418, 17.24.425, 17.24.501, 17.24.623, 17.24.639, 17.24.642, 17.24.645, 17.24.646, 17.24.702, 17.24.711, 17.24.718, 17.24.723, 17.24.725, 17.24.726, 17.24.901, 17.24.924, 17.24.926, 17.24.927, 17.24.1001, 17.24.1002, 17.24.1003, 17.24.1005, 17.24.1016, 17.24.1018, 17.24.1112, 17.24.1113, 17.24.1114, and 17.24.1116, adopted New Rules I (17.24.1264), III (17.24.1266), and IV (17.24.1267), and repealed ARM 17.24.763 exactly as proposed.  The board has amended ARM 17.24.1111 and 17.24.1201 and adopted New Rules II (17.24.1265) and V (17.24.1019) as proposed, but with the following changes, new matter underlined, stricken matter interlined:

 

            17.24.1111  BONDING:  BOND RELEASE APPLICATION CONTENTS

            (1) and (2) remain as proposed.

            (3)  The application must include the permit number and date approved or renewed, a proposed public notice of the precise location of the land affected, the location and acreage for which bond release is sought, the amount of bond release sought, a description of the completed reclamation, including the dates of performance and how the results of the reclamation satisfy the requirements of the approved reclamation plan, and copies of letters sent to adjoining property owners, surface owners, local government bodies, planning agencies, and sewage and water treatment facilities or water companies in the locality of the permit area, notifying them of the permittee's intention to seek release of performance bond(s).  These letters must be sent before the permittee files the application for release the information required by 82-4-232(6)(a), MCA.

            (4) through (7) remain as proposed.

 

            17.24.1201  FREQUENCY AND METHODS OF INSPECTIONS  (1) remains as proposed.

            (2)  A partial inspection is an on-site or aerial observation of the operator's compliance with some of the mining or prospecting permit conditions and requirements.  Aerial inspections shall be conducted in a manner and at a time that reasonably ensure the identification and documentation of conditions at each operation in relation to permit conditions and requirements.  Any potential violation observed during an aerial inspection shall be investigated on site within three days, provided that any indication of a violation, condition, or practice that creates an imminent danger to the health or safety of the public or is causing or can reasonably be expected to cause significant and imminent environmental harm to land, air, or water resources shall be investigated on site immediately.  On-site investigations of potential violations observed during an aerial inspection must may not be considered to be an additional partial or complete inspection for the purposes of ARM 17.24.1201.

            (3) and (4) remain as proposed.

 

            NEW RULE II  DEPARTMENT ELIGIBILITY REVIEW  (1) through (3) remain as proposed.

            (4)  Except as provided in ARM 17.24.405(6)(h), the applicant is not eligible for a permit if approval is prohibited by 82-5-227 82-4-227(11) or (12), MCA.

            (5) through (6) remain as proposed.

 

            NEW RULE V  PERMIT REQUIREMENT - SHORT FORM  (1) remains as proposed.

            (2)  A person who conducts a coal prospecting operation pursuant to (1) must, before conducting the prospecting operations, file with the department a prospecting permit application on a form provided by the department.  Prospecting operations must not be conducted until the department has reviewed the application pursuant to 82-1-226 82-4-226(8), MCA, and issued a permit.

            (3)  All provisions of this subchapter, except ARM 17.24.1001(1), (2), and (4) through (6), 17.24.1006(2), and (3)(b) and (c), 17.24.1007, 17.24.1009, 17.24.1014, and 17.24.1018 apply to a prospecting operation permitted pursuant to 82-4-226(8), MCA.

 

            3.  The following comments were received and appear with the board's responses:

 

            COMMENT NO. 1:  Proposed changes to ARM 17.24.302 should be amended to limit information submittals to formats that are "protected from unauthorized alteration."

            RESPONSE:  The department currently has a guideline describing the formats for information submittals.  The guideline requests that all required documents be submitted in PDF format.  The guideline also requests that tabular and map data be submitted in the original format (.xlsx, .dwg, etc.) in addition to the PDF version.  The intent of the proposed rule amendments is to provide the department with authority to require formats that allow the department to more easily analyze and incorporate the information into its databases.  The PDF version of each document will remain unaltered and will be considered the "original" file document.  Accordingly, the board declines to make the suggested change to ARM 17.24.302.

            COMMENT NO. 2:  Proposed changes to ARM 17.24.302, 17.24.645, and 17.24.646 should be amended to limit information submittals to only formats that are "mutually" agreed upon by the department and the applicant.

            RESPONSE:  If the proposed rule amendments were modified to include "mutual agreement," it would nullify the intent of the proposed amendments, which is to make it possible for the department to more easily incorporate information into its electronic databases.  Also, the commentor's suggestion would potentially require the department to accept a different format from each applicant as all applicants may not agree on a single format.  Therefore, the board declines to make the changes proposed in the comment.

 

            COMMENT NO. 3:  The phrase located in ARM 17.24.313(1)(h)(x) "revegetation types" should be replaced with the phrase "post-mine land use."

            RESPONSE:  The comment is outside the scope of the proposed amendments in ARM 17.24.313(1)(h)(x).  The proposed amendment merely added a cross-reference, and the board cannot make a substantive amendment to the rule in this proceeding.  A substantive amendment would require public notice and an opportunity to comment on the amendment.

 

            COMMENT NO. 4:  The term "operator" should be replaced with the term "permittee" in ARM 17.24.646 and 17.24.1201.

            RESPONSE:  The comment is outside the scope of the proposed rulemaking.  Also, the operator is required to apply for a permit and is therefore also the permittee.  Accordingly, the board declines to make the change proposed in the comment.

 

            COMMENT NO. 5:  The definition of the phrase "other constructed features," in ARM 17.24.711, should be amended to remove the specific size restriction and the design approval requirement.  These specifics would then be replaced by generic language that provides a similar intent.

            RESPONSE:  The Office of Surface Mining required Montana to define "other constructed features" with limits on size, slope, stabilization against erosion, and other environmental factors that may affect stability.  See 72 Fed. Reg. 57822, 57826 (October 10, 2007).  It is difficult to predict all potential "other constructed features" that may benefit the post-mine land use.  The board's proposed definition provides a specific limit on the size of features and requires that the department review a design to verify that the feature complies with slope, stabilization against erosion, and other environmental factors that may affect stability.  The commentor's proposed language does not meet the Office of Surface Mining's requirement.  Accordingly, the board declines to make the change proposed in the comment.

 

            COMMENT NO. 6:  The proposed increase in bonding acres for each drill site in ARM 17.24.1016 from 0.1 acres to 1.0 acres is excessive and should only be increased to 0.25 acres.

            RESPONSE:  All drill sites have a level of disturbance associated with the activity and without a detailed disturbance plan in the permit application, an assumed area must be assigned.  If the applicant chooses to provide a detailed plan for disturbance, the department maintains the authority in ARM 17.24.1016(3) to approve a smaller disturbance area for each drill site.  Accordingly, the board declines to make the change proposed in the comment.

 

            COMMENT NO. 7:  The board should consider citing 82-4-232(6)(a) instead of adding similar language to ARM 17.24.1111(3).

            RESPONSE:  The board agrees with the comment and has amended the rule as shown above.

 

            COMMENT NO. 8:  Neither the Montana Code Annotated nor the federal regulations support the requirement in ARM 17.24.1111(3) to send notification letters prior to filing an application.

            RESPONSE:  Section 82-4-232(6), MCA, requires the application to include ". . . copies of letters that the permittee has sent.  . . .."  Furthermore, 30 CFR 800.40(a)(2) requires the bond release application to include ". . . copies of letters which he or she has sent.  . . .."  The board does not agree with the comment.  However, in addressing Comment No. 7, the board will delete the language in ARM 17.24.1111(3) and replace it with a citation to 82-4-232(6).

 

            COMMENT NO. 9:  Proposed amendments to ARM 17.24.1201 should be modified in order to be no less effective than 30 CFR 840.11(d)(2).

            RESPONSE:  The commentor did not specify in what manner that ARM 17.24.1201 is less effective than 30 CFR 840.11(d)(2) and the board has not identified an area to support this comment.  The proposed language is almost verbatim with the federal language except that the federal language requires an immediate inspection when the violation would constitute grounds for a cessation order.  The proposed state language instead uses a description of these grounds.  Accordingly, the board declines to amend the language.

 

            COMMENT NO. 10:  It is recommended that the word "must" be replaced with the word "shall" in the proposed amendment to ARM 17.24.1201.

            RESPONSE:  The board agrees that the word choice should be modified, but has determined that it is grammatically accurate to replace the word "must" with the word "may" instead of the word "shall" as the commentor suggested.

 

            COMMENT NO 11:  There is a typographical error located in New Rule II(4).  The cross reference to 82-5-226(11) should be to 82-4-226(11).

            RESPONSE:  The board agrees with the comment and the rule has been amended as shown above.

 

            COMMENT NO. 12:  There is a typographical error located in New Rule V(2).  The cross reference to 82-1-226(8) should be to 82-4-226(8).

            RESPONSE:  The board agrees with the comment and has amended the rule as shown above.

 

            COMMENT NO. 13:  As proposed, New Rule V(3) provides an exemption for all short form prospecting permits from the requirements of ARM 17.24.1001.  The intention of SB 286 is to exempt short form prospecting permits from ARM 17.24.1001(2) and (4) through (6).

            RESPONSE:  The board agrees with the comment and the rule has been amended as shown above.

 

Reviewed by:                                                BOARD OF ENVIRONMENTAL REVIEW

 

 

 

/s/ John F. North                                   By:  /s/ Joseph W. Russell                                 

JOHN F. NORTH                                         JOSEPH W. RUSSELL, M.P.H.

Rule Reviewer                                             Chairman

 

Certified to the Secretary of State, April 2, 2012.

 

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